SALIM AHMED MOIZ AHMED vs SANGLI URBAN CO-OPERATIVE BANK LTD on 11 June 2025

JUDGMENT

(Delivered on 11th June, 2025)

1. This Miscellaneous Application No.4/2025 has filed by the applicants against the respondents for restoration of Securitisation Application No.99/2021 and in alternatively direct the Respondent No.1 to execute registered Release Deed / Reconveyance Deed in respect of three mortgaged properties as mentioned in Paragraph No.6 (c) of the Miscellaneous Application. The applicants have further prayed to issue direction to the bank to vacate its charge noted on 7/12 extract of the mortgaged properties.

2. The brief facts of this Miscellaneous Application are that applicants had filed Securitisation Application No.99/2021 challenging the SARFAESI actions of the respondent bank and during pendency, after negotiation respondent No.1 bank agreed for OTS of Rs.77 Lacs (Rupees Seventy-Seven Lacs only) for both loan accounts as per Annexure A-1. The last date of the OTS was 15.05.2023. Due to some financial problems there was delay in payment of remaining amount of Rs.27 Lacs (Rupees Twenty-Seven Lacs only) but the same was paid with interest. In view of this OTS, Securitisation Application No.99/2021 was disposed of on 30.06.2023. After receipt of OTS amount, the respondent No.1 bank issued loan account closure certificate for both the loans and the applicants requested to release the charge from the mortgaged properties by executing registered release deed / reconveyance deed but the respondent bank flatly refused for the same. The applicants made a written request to the respondent bank vide Letter dated 20.07.2023, 30.10.2023 and 17.01.2025 but to no effect. The respondent bank gave a vague reply on 28.07.2023 and refused to execute registered release deed / reconveyance deed. The applicants left with no other alternative, have filed the present MA for restoration of Securitisation Application No.99/2021 and also for directing the respondent No.1 bank to execute the registered release deed / reconveyance deed.

3. The respondent No.1 bank filed reply (Exhibit-5) and contested the application on the grounds that present application is barred by principle of res-judicata as a similar MA No.92/2023 seeking relief of restoration of Securitisation Application No.99/2021 was disposed of by final order dated 10.06.2024 and the present application is not maintainable. It is further submitted that while contesting MA No.92/2023 this Tribunal has not passed any orders of restoration and hence relief as sought for by the applicants is deemed to have been rejected and applicants cannot seek same relief again.

4. The Securitisation Application No.99/2021 was finally disposed of vide Order dated 30.06.2023 on the ground of OTS settlement and now this Securitisation Application cannot be restored. It has also been stated that out of 07 properties, four properties were sold by the bank in auction and out of these four properties, two properties were purchased by the bank under Section 13(5A) of the SARFAESI Act. However, none of the said auctions have been challenged by way of any of the applicants or other legal heirs of Moiz Ahemad. Even in Securitisation Application No.99/2021 applicants have not challenged the act of taking possession of other three properties hence there is no cause remains to challenge these actions. The present MA has been filed on similar ground as taken in MA No.92/2023 and now the present MA is not maintainable as the applicants have no cause of action to file the present MA again for the same relief. The respondent bank immediately replied the letter of the applicants on 28.07.2023. The order dated 10.06.2024 passed in MA No.92/2023 on the statement of the counsel for the applicants and the bank did not agree with the same and the Hon’ble Tribunal has observed that if the statement of the counsel of the applicant is correct, the respondent bank should do the needful within two weeks. However, as the dues were not received, the property as sought for could not be released by the bank. The respondent is ready and willing to execute the reconveyance deed of all the properties of the applicants subject to the applicants deposit of an amount towards the sale of the properties purchased by the bank as agreed by the applicants. The respondent bank denied other allegations of the application and dismissal of the same was prayed for.

5. I have heard the learned counsels for the parties and gone through the written submissions submitted on behalf of the respondent bank and perused all the available documents on record.

6. As per order dated 30.06.2023, Securitisation Application No.99/2021 was disposed of and file was ordered to be consigned in the Record Room. In this order the counsel for the applicants submitted that matter is compromised with the bank and the entire OTS amount as per requirement of the bank has been given. The counsel for the respondent bank confirmed that payment under OTS has been made.

In these circumstances, the Securitisation Application No.99/2021 was disposed of with the liberty to the parties to move the application in case of any difficulty.

7. It may be noted here that the present applicant filed M.A. No.92/2023 for the same relief as sought in the present MA and M.A. No.92/2023 was disposed of vide order dated 10.06.2024 (Annexure A-8). In order to adjudicate the present application, a reference of order dated 10.06.2024 is necessary which is as under: “Mr.V.R. Patil - Advocate for the applicant. Mrs. Madhuri R. Vaidya – Advocate for the respondent-bank. Mr. for the respondent-bank. The matter is taken through Hybrid.

1. In this matter the learned counsel for the applicant submits that he has paid the entire dues of the bank and the account is closed. However, the bank is not releasing the security.

2. If the statement of the counsel is correct the respondent bank do needful within two weeks from today.

3. In view of the above, I pass the following order.

ORDER

A. The Miscellaneous Application No.92/2023 stands disposed off. B. The respondent bank do needful within two weeks from today C. File be consigned to the record room.”.

8. The respondent bank has also produced copy of earlier MA No.92/2023. If the contents of this application are compared with the present MA No.4/2025, the applicants are seeking the same relief as sought in MA No.92/2023. Once the MA has been disposed of, on similar grounds Second MA for the same relief is not maintainable and the present MA is liable to be dismissed.

9. The learned counsel for the respondent bank further pointed out that the applicants alongwith some other persons had broken opened the lock of the said property and taken the forcible possession and trespassed into the said property and further gave life threatening to Branch Manager of the bank whereupon the Branch Manager has filed a police complaint dated 15.02.2025 to the police and in support of this fact, Shri Govind Dashrathrao Deshmukh has filed his additional affidavit dated 10.05.2025 on record. On behalf of the respondent bank Vishram Shshikant Bharane, Authorised Officer of the bank has also filed sworn affidavit in support of the pleas taken in the reply. On the otherside, one of the applicants Salim Ahmed Moiz Ahemad has filed affidavit in reply Exhibit-07 in support of allegations made in the application.

10. The applicant has not filed any affidavit to rebut the additional evidence of the Branch Manager that the applicants are not interfering in the peaceful possession of the respondent bank regarding their non-banking assets. Therefore, the conduct of the applicants is to be appreciated as he is not paying the amount of sale pertaining to the asset purchased by the bank but he is creating even obstacle as and when the bank make efforts to sell away the properties purchased by the bank in auction to third parties. More-so, the applicants must have sought reconveyance or release deed of charge pertaining to all the properties and therefore, the claim of the applicants as set up in the present MA is not sustainable. More-so, the similar matter has already been adjudicated by this Tribunal in MA No.92/2023 vide order dated 10.06.2024. However, still respondent bank is at liberty to execute release deed / reconveyance deed in respect of three mortgaged properties as referred in the application immediately after selling away the properties purchased by the bank in auction or sale consideration is paid by the applicants to the Bank.

11. In view of above findings, I pass the following order.

ORDER

(A) Miscellaneous Application No.4/2025 is hereby dismissed with no order as to costs.

(B) Accordingly, all other Interlocutory Applications, if any pending shall stands disposed of in terms of the present judgment. (C) File be consigned to the Record Room after due compliance. Pronounced in open Court. Date : 11.06.2025. Sd/- (Dr. J.R. Chauhan) Presiding Officer Debts Recovery Tribunal, Aurangabad